Nothing occurs in a vacuum. Phenomena are to be understood in their contexts. Let us take the case of 103rd Constitutional amendment which introduced Articles 15(6) and 16 (6) to extend reservations to Economically Weaker Sections (EWS). Data revealed by the Labour Ministry for the year 2017-18 pegged unemployment rate in the country at 6.1%, highest in forty-five years according to critics, irrespective of the fact that Labour Ministry claims the usage of a different matrix in the assessment. Then there was the initial outburst against Agnipath scheme but later, the youth flocked into join the scheme. 'Common-sensical prejudices of the privileged' as Yogendra Yadav and Pranny Dhawan put it in their article in The Print, found a villain in the existing reservation scheme for the backward classes. Finding the consistent stigmatization of backward classes for reservation not enough, upper caste groups such as Jats, Gurjars, Meenas, Marathas, Patidars, etc. got down to streets demanding reservation. The political class had to respond. But they chose to borrow from the dominant common sense in an imaginative way for immediate gains, i.e., 2019 General Elections. When the Supreme Court was undertaking the judicial review of the amendment, data on unemployment didn't present a rosy picture either, especially in the context a 'perma crisis'. It will be interesting to analyse whether the SC trusted the narrative of reservation as an employment creation and poverty alleviation scheme. Out of the five judges, then CJI UU Lalit and Justice S. Ravindra Bhat held a view which was in the minority. But all the judges were unanimous in holding that economic criteria for reservation is perfectly justified.
Rational of Economic Criteria
Justice Dinesh Maheswari found thirty instances where the word economic is used in the Constitution. The majority judgment felt that the concept of economic justice gets equal attention as social justice. It is important in achieving the goal of an egalitarian society. "If a segment does not have disadvantages other than poverty, that should not be denied state support by way of affirmative action" and there cannot be any 'competition claims' with the groups in denial mode. Petitioners argued that instead of reservation, EWS should be bestowed with 'poverty alleviation measures'. Rejecting the argument, the majority opined that affirmative action is not reserved for backward classes only. Constitution is a 'living thing' to meet the 'current needs and requirements' like distributive justice. Justice J.B. Padiwala. in his concurring judgment drew "parallel" between the logic of creamy layer and economic rationale of reservation. In the case of creamy layer, economic advancement 'negates certain disadvantages', the converse would be equally relevant. To him, caste neutral reservation is in harmony with the Constitutional goal of casteless society. To Justice Ravindra Bhat, Indra Sawhney case does not suggest 'disproval of economic criteria'. The case cannot be an authoritative precedent while considering 'introduction of a new criteria for affirmative action'. Existing method cannot be the only way to achieve social and economic justice and recognition of other criteria is possible when discrimination disallows a large segment of population "access to institutions or participation in public affairs and offices", a requirement for the achievement of egalitarian and casteless society.
Thus, all judges subscribe to the elite commonsensical view. Yogendra Yadav and Pranny Dhawan sum up the situation beautifully i.e., it is about mutable and transitory economy versus structural disadvantages. Though the majority judgment expresses the desirability of lack of competition claims, the words of Justice Pardiwala point to such a dichotomy. "The natural effect of reservation is to close the door of betterment or even employment to an even portion of economically weaker sections of the community". The judgment seems to be detached from history on three counts, (i) in not discussing why the Constituent Assembly was not allured by economic criteria and whether the reasons for such an option are still relevant; (ii) in underplaying the historical discrimination backward classes were subjected to; and (iii) why reservation was seen as a last (temporary)resort . Other demerits of the economic criteria will be discussed in the following sections.
Equality Code and the Basic Structure
Judges see Articles, 14, 15, 16 and 17 as part of the equality code. Twin conditions of 'intelligible differentia' and 'rational nexus' save a law from being condemned as discriminatory. Quoting precedents, Justice Dinesh Maheswari states that if there is "similarity and uniformity within a group", the law will survive. Articles 15 and 16 are seen as enabling provisions that do not create a right. Reservation is an exception to the general rule and cannot be regarded as an essential feature of the Constitution. Justice Bela M. Trivedi quotes from the Ashok Mills case "a reasonable classification is one which includes all who are similarly situated and none who are not", but still continues to conclude that EWS is homogenous group. The Judge couldn't notice the high level of dissimilarity between a person whose monthly income is Rs 1,500 and one who earns Rs 65,000. The EWS group is highly heterogenous and there is neither similarity nor uniformity. The Judge states that what is stated in the Preamble, Part III and IV of the Constitution, cannot be stated to be violative of the basic structure.
To Justice Pardiwala, amending power cannot be construed in a "narrow and pedantic manner", under-classification and over-classification are best left to the wisdom of legislature because of the 'element of practicability' involved.
According to Justice Ravindra Bhat, equality code is a part of the basic structure. The principle of non-discrimination is the bedrock value which enlivens the equality code. This naturally leads to the legality of leaving out SC/ST/OBC from the ambit of Articles 15(6) and 16(6).
Other than SC/ST/ OBC
The majority judgment posits exclusion as inevitable for the true operation and effect of the scheme of EWS reservation. The excluded classes are already provided with reservation and the quota earmarked for them is not depleted in any manner. Exclusion is a necessity to reach the target group in a vertical reservation. Thus, compensatory discrimination has to be distinguished from direct discrimination. In a way, the majority judgment wants to equate exclusion of EWS from backward class reservation with Articles 15(6) and 16(6) exclusions.
On this count, the minority view seems to score its first point. It articulates that SC/ST/OBC as beneficiaries of other reservations cannot be a "distinguishing factor" that keeps them out of the amendment's purview. There is no rational nexus between the distinction and objective of the amendment i.e., elimination of poverty and economic justice. The argument that through existing reservation backward classes are "Loaded with benefits" belittles their plight. The individual within the collective does not get located in this exclusion. For these reasons, the minority judgement declares the exclusion as infringing the non-discriminatory and non-exclusionary aspects of the equality code and finds that the amendment violates the basic structure.
Reservation in Public Employment
Majority view raises two examples to drive home the point that equality in matter of employment cannot only be for the objective of representation. They rely on Article 16 (4-B) (no ceiling and special vacancies for accommodating carry forward vacancies) and article 16(5) (for protecting operation of religions or denominational institutions). But these two are not perfect examples to illustrate the concept, rather they reiterate that representation is the only objective of reservation to public employment. The minority view exposes the shaky ground upon which the majority argument is standing. In that context, it for the first time examines the Constituent Assembly Debates and expresses that "the link between providing equal opportunity and representation through reservation was the only exception permitted by the constitution to further equality in public employment." Article 16(6) is not premised on the lack of representation. Forward castes are adequately represented in public services and hence the violation of equality code and basic structure.
50% Ceiling and the Basic Structure.
The majority view addresses the issue in a negative manner. If the rule is invidable, classes already in the fifty percent cannot stake claim in the extra ten percent. The rule is applicable in relation to reservations existing before the amendment, which cannot prevent the Parliament from providing for another form of reservation.
Indra Sawhney left "a small window open for extra ordinary situations inherent in the great diversity of our country" if a special case is made out. Thus, green signal is shown to crossing the fifty percent limit.
The minority view is silent on this aspect because of the impact it has on pending cases. It appears to be sober and cautious while quoting Dr. Ambedkar "reservations are to be exceptional or else they would eat up the rule of equality". Prophetic words considering the interests which are in queue.
Purpose and Empirical Basis
Majority view is futuristic when it says relevant data and factors and the extent of reservation could be matter for consideration but the amendment "moderately expanding enabling power of the State, cannot be questioned."
The minority view is more open to this aspect and in a brief manner examines the Sinho Commission Report, NITI Ayog Report on National Multidimensional Poverty Index (2021) and the Object and Reasons of the amendment. It loosely finds a basis for distributive justice in the form of reservation for below poverty line and feels amendment "adds a new dimension to the constitutional project of uplifting the poorest segments of the society".
But the suggested data ridicules the criteria adopted for reservation. As aptly pointed out by Yogendra Yadav and Pranny Dhawan, by no stretch of imagination 5.4% of the population cannot be allotted ten percent total reservation.
By the affirmation of the data provided by the Union for justifying economic criteria, minority view forgets the Supreme Court rulings on requirement of specific date to prove the basis of reservation schemes under Articles 15 and 16. Anyway, it appears a better proposition than the majority way of leaving it to the contingencies of future.
Better on a Comparative Scale
Justice Ravindra Bhat and then CJI Lalit might have erred in joining the chorus on the basic postnate, thereby succumbing to the privileged common sense and intellectually lazy political class. They might have been misled by the sole devotion to the Constitutional letters without acknowledging the roles of past and present population in serving the content of constitutional ethos. They might have also erred in not correctly reading or not insisting on specific data. Also, because they believe the constituent power of the parliament is unquestionable for want of data. But their logic regarding the exclusionary nature of the amendment and representational facet of reservation to public employment is exemplary. In comparison, the majority views economic reservation as a mechanism which would create a casteless and egalitarian society. Judiciary these days acts as a facilitator in removing obstacles for neo-liberal economic policies. It needs a miracle to achieve an egalitarian society by functioning within this framework. How the Judges could view reservation as an omnipotent to achieve that goal? One thing is sure, contours of economic basis of reservations will be determined by future challenges to it. For example, the minority view rejects the argument that both reservations stand on the same pedestal as constitutionally unsound, because EWS never had a story to tell about oppression or discrimination. The legal evolution of this scenario would be interesting. Last but not the least, is the dissenting judges' message for the country that "divisiveness fosters distrust" and weakens fraternity and equality, liberty and justice? A message with lots of inner meaning for the present days.